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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICK A. SLORP,

Plaintiff,

v. Civil Action 2:12-cv-498

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Jolson

LERNER, SAMPSON & ROTHFUSS,

et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Compel (Doc. 82) and 

Supplemental Motion to Compel (Doc. 93). For the reasons that follow, the Motions are 

DENIED.

I. BACKGROUND

A. Facts and Prior Proceedings

Several prior opinions have detailed the facts of this case. See, e.g., Slorp v. Lerner, 

Sampson & Rothfuss, 587 F. App’x 249 (6th Cir. 2014); (Doc. 31). Briefly, and relevant to the 

pending Motions, the catalyst for this case was a separate foreclosure action in state court in

2010. In July of 2010, BAC Home Loans Servicing, LP (“BAC”) brought a foreclosure action 

against Plaintiff in the Franklin County Court of Common Pleas. It did so based on a promissory 

note (“the Note”) naming Countrywide Bank, FSB (“Countrywide Bank”) as the lender and 

Plaintiff as the borrower. 

The Note was secured by a mortgage (“the Mortgage”) on Plaintiff’s home. The 

Mortgage lists Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) as the

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mortgagee. (Doc. 78-1 at 11). MERS executed the Mortgage as “nominee for [Countrywide 

Bank’s] successors and assigns.” (Id.). Based on the Mortgage, Plaintiff agreed

that MERS holds only legal title to the interests granted by Borrower in this 

Security Instrument, but, if necessary to comply with law or custom, MERS (as 

nominee for Lender and Lender’s successors and assigns) has the right: to 

exercise any or all of those interests, including but not limited to, the right to 

foreclose and sell the Property; and to take any action required of Lender 

including, but not limited to, releasing and canceling this Security Instrument.

(Id. at 13). 

On July 9, 2010, MERS, again acting as Countrywide Bank’s nominee, assigned 

Countrywide Bank’s interest in the Mortgage to BAC (“the Assignment”). Shellie Hill, now a 

Defendant in this case, executed the Assignment to BAC on behalf of MERS. (Id. at 27). At the 

time of the Assignment, Ms. Hill “purported to be an assistant secretary and vice president of 

MERS.” Slorp, 587 F. App’x at 252; (see Doc. 78-1 at 27–28). Ms. Hill was also employed as a 

paralegal by Defendant Lerner, Sampson & Rothfuss (“LSR”) at the time of the Assignment. 

(See, e.g., Doc. 26-2 at 4).

Twelve days after the Assignment was executed, LSR filed the foreclosure action on 

behalf of BAC. The complaint filed in the foreclosure action contained a copy of Plaintiff’s 

Note, Mortgage, and the Assignment. (Doc. 26-1 at 5–25). LSR eventually moved for summary 

judgment, and the state court awarded judgment to BAC. Plaintiff then retained new counsel and 

moved for relief from the judgment, arguing that the Assignment was invalid and seeking to 

depose Ms. Hill. BAC dismissed the foreclosure action, and the state court vacated its judgment. 

Soon after the voluntary dismissal, Plaintiff brought this action against LSR, Ms. Hill, 

MERS, and Bank of America, N.A. (“BANA”), the successor in interest to BAC. (See, e.g., 

Doc. 66 ¶ 5). Defendants moved to dismiss the complaint, and Plaintiff responded by seeking 

leave to amend to add a civil claim based on the Racketeer Influenced and Corrupt Organizations 

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Act (“RICO”), 18 U.S.C. §§ 1961–68. The District Court granted the motion to dismiss and 

denied the motion for leave to amend. (Doc. 31). The Sixth Circuit reversed and remanded to

allow Plaintiff to amend and add his RICO claim. Slorp, 587 F. App’x at 266.

B. The Documents and Communications at Issue

Plaintiff bases his RICO claim, the only remaining claim in this case, on the Assignment. 

He primarily contends that the Assignment was falsely executed because Countrywide Bank did 

not exist on July 9, 2010, the date on which Ms. Hill assigned Countrywide Bank’s interest in the 

Mortgage to BAC, and because Ms. Hill did not have the authority from Countrywide Bank or 

MERS to execute the Assignment. At base, Plaintiff theorizes that Defendants took part in a 

scheme to foreclose on a fraudulently assigned mortgage. 

In furtherance of his RICO claim, Plaintiff served written discovery on BANA and LSR. 

Plaintiff seeks what he broadly refers to as “documents evidencing” BANA’s and LSR’s “actions 

and communication” concerning Defendants’ “entitlement to enforce Mr. Slorp’s Note and 

Mortgage, [and] the steps taken by, transfer of funds, and communications among [Defendants]

to effect fraudulent Assignments of Mortgage.” (Doc. 82 at 6). For example, Plaintiff seeks 

written discovery related to contracts and agreements between Defendants that deal with

foreclosure instructions; documents regarding LSR’s authority to proceed with foreclosure 

against Plaintiff, as well as against other similarly situated homeowners; invoices and fee reports 

between the parties; documents and communications discussing the reason and strategy for the 

foreclosure of Plaintiff’s property; documents evidencing any communication between 

Defendants in general; any documents or communications referring to Plaintiff’s account; and 

communications and documents relating to endorsements of the Note and the authority of the 

various Defendants to assign the Note. (See generally Docs. 82-2, 82-13). Plaintiff also noticed 

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corresponding depositions for representatives of BANA, LSR, and MERS (see Docs. 90, 91, 92), 

which are the subject of the Supplemental Motion to Compel (Doc. 93).

C. The Pending Motions to Compel

LSR and BANA objected to much of the written discovery (and to the corresponding 

depositions) on the basis of attorney-client privilege and the work-product doctrine. Plaintiff

then filed his Motion to Compel. (Doc. 82). He also filed a Supplemental Motion to Compel 

(Doc. 93), asking the Court to apply its ruling on the attorney-client and work-product issues to 

the depositions of BANA’s, LSR’s, and MERS’s respective corporate representatives, and to the 

objections to the written discovery that the he anticipates MERS will make. (Id.). 

Rule 37 of the Federal Rules of Civil Procedure authorizes a motion to compel discovery 

when a party fails to respond to interrogatories under Rule 33 or requests for production under 

Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). As a threshold requirement, the party moving to 

compel discovery must certify that it “has in good faith conferred or attempted to confer with the 

person or party failing to make disclosure or discovery in an effort to obtain it without court 

action.” Fed. R. Civ. P. 37(a)(1); see also S.D. Ohio Civ. R. 37.1. This prerequisite has been 

met regarding Plaintiff’s primary Motion to Compel. (See Doc. 82-1). Whether the requirement 

has been satisfied as to the Supplemental Motion to Compel is less clear. Infra at 13–14. 

II. STANDARD

Pursuant to Rule 26(b)(1) of the Federal Rule of Civil Procedure, “[p]arties may obtain 

discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and 

proportional to the needs of the case.” Plaintiff does not contest that the material he seeks is 

protected by attorney-client privilege and the work-product doctrine. Rather, he argues that the 

material is discoverable based on the crime-fraud exception or waiver. In federal court, federal 

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common law governs questions of privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 

(1981). Separate standards apply to Plaintiff’s two bases for piercing the privilege.

Crime-Fraud Exception: The party claiming the crime-fraud exception must meet a 

two-prong test: “First, . . . make a prima facie showing that a sufficiently serious crime or fraud 

occurred to defeat the privilege; second, . . . establish some relationship between the 

communication at issue and the prima facie violation.” In re Antitrust Grand Jury, 805 F.2d 

155, 164 (6th Cir. 1986). Meeting this test requires “evidence . . . such that a prudent person 

[would] have a reasonable basis to suspect the perpetration of a crime or fraud.” United States v. 

Collins, 128 F.3d 313, 321 (6th Cir. 1997); see also In re Grand Jury Subpoenas, 454 F.3d 511, 

520 (6th Cir. 2006) (“Both [the attorney-client and work-product] privileges may be 

overridden . . . by the so-called crime-fraud exception . . . .”). 

Waiver: “[T]he party seeking protection . . . bears the burden of establishing the 

existence of the attorney client privilege as well as non-waiver of that privilege.” Liang v. AWG 

Remarketing, Inc., No. 2:14-CV-0099, 2015 WL 8958884, at *5 (S.D. Ohio Dec. 16, 2015); see

also In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983) (“The burden 

of establishing the existence of the privilege rests with the person asserting it.”).

III. DISCUSSION

A. The Crime-Fraud Exception 

The crime-fraud exception applies to communications between attorney and client “made 

for the purpose of getting advice for the commission of a fraud or crime.” United States v. Zolin, 

491 U.S. 554, 563 (1989) (internal quotation marks omitted). Plaintiff makes several arguments 

for why the crime-fraud exception applies here.

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1. The District Court’s Denial of the Motion to Dismiss

Plaintiff first points to the District Court’s denial of Defendants’ motions to dismiss. (See 

Doc. 62). Because he survived the pleadings stage, he argues that “it is indisputable that [he] 

made a prima facie showing of fraud and that the fraud is related to the facts alleged in the 

complaint and the information requested in [his] discovery requests.” (Doc. 82 at 12). But 

simply alleging a crime is not enough to support a prima facie crime-fraud showing.

“[T]he attorney-client privilege and the work-product doctrine . . . are well-established 

and integral to the proper functioning of our legal system.” In re Grand Jury Subpoenas, 454

F.3d at 519; see Upjohn, 449 U.S. at 389 (“The attorney-client privilege is the oldest of the 

privileges for confidential communications known to the common law.”). Lifting the wellestablished privilege takes more than the mere allegation of fraud. See Clark v. United States, 

289 U.S. 1, 15 (1933) (“It is obvious that it would be absurd to say that the privilege could be got 

rid of merely by making a charge of fraud.”); In re Grand Jury Subpoenas, 454 F.3d at 519 

(party seeking an exception to the work-product privilege “must make a preliminary showing”); 

Williams v. Duke Energy Corp., No. 1:08-CV-00046, 2014 WL 3895227, at *6 (S.D. Ohio Aug. 

8, 2014) (“The mere assertion that a crime or fraud has occurred is not enough to overcome a 

valid attorney-client privilege and work produc[t] claims.”). 

Pointing only to the pleadings and the denial of the motions to dismiss, as Plaintiff does 

with his first argument, is only an unsupported assertion that a crime or fraud has occurred. In 

denying the motions to dismiss, the District Court simply followed the Sixth Circuit’s opinion 

holding that Plaintiff’s RICO claim could proceed as pleaded. (See Doc. 62 at 4–5). Allegations 

in a pleading are not evidence, and without any evidence in support, the Court cannot conclude 

“that a prudent person [would] have a reasonable basis to suspect the perpetration of a crime or 

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fraud.” Collins, 128 F.3d at 321; see also Williams, 2014 WL 3895227, at *6–11 (rejecting 

plaintiffs’ argument that the Sixth Circuit’s decision to allow their fraud claims to go forward 

was prima facie evidence sufficient to support the crime-fraud exception). 

2. Ms. Hill’s Authority to Assign the Mortgage on Behalf of MERS

Plaintiff also argues that Ms. Hill lacked the authority to execute the Assignment, and 

that her lack of authority is prima facie evidence of fraud. (Doc. 82 at 13). In support, he notes 

that Defendants produced agreements between MERS and other entities, which expressly gave 

Ms. Hill the authority to execute assignments for MERS, but Defendants did not produce a 

similar agreement between MERS and Countrywide Bank. (See Doc. 82-15 (Agreement for 

Signing Authority for Ms. Hill to act on behalf of MERS as nominee for BAC); Doc. 82-11

(same as to Countrywide Home Loans, Inc.)). Plaintiff argues that without an express agreement 

“granting Ms. Hill authority from Countrywide Bank, FSB (the transferor) to transfer an interest 

in the mortgage,” Plaintiff asserts that “the Assignment of Mortgage is invalid.” (Doc. 82 at 4). 

At base, Plaintiff’s smoking gun on this point is the absence of evidence.

Defendants, however, have offered evidence to support their position that Ms. Hill indeed 

had authority to execute the Assignment for MERS on behalf of Countrywide Bank. (See, e.g., 

Doc. 75-1 (affidavit of Ms. Hill stating that she had authority to execute the Assignment as an 

appointee of MERS); Doc. 78-1 at 11–13 (the Mortgage, stating that MERS was the Mortgagee 

to the property at issue and thus had to the right to “foreclose and sell the Property”)); (see also 

id. at 1–3 (affidavit of BANA representative Susan Magaddino averring that MERS had the 

authority to assign the Mortgage)). Accordingly, Plaintiff has not met the prima facie 

evidentiary burden for the crime-fraud exception on this point.

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3. Countrywide Bank Was No Longer in Existence at the Time of Assignment

Plaintiff next argues that the attorney-client veil should be pierced because Countrywide 

Bank was no longer in existence when the Mortgage was assigned. Though Plaintiff is factually 

correct, see Thompson v. Bank of Am., N. Am., 773 F.3d 741, 749 (6th Cir. 2014) (“Countrywide 

Bank FSB was purchased by BOA in 2008.”); (see also Doc. 78-1 at 2, 30), the law does not 

support his argument. The Mortgage expressly states that MERS held legal title to the interests 

in the Mortgage (see Doc. 26-1 at 11), including the ability to assign the Mortgage. See 

Hargrow v. Wells Fargo Bank N. Am., 491 F. App’x 534, 538 (6th Cir. 2012) (“Here, MERS was 

unambiguously the original mortgagee of the Hargrows’ Mortgage. The Hargrows granted 

MERS the power to assign the Mortgage, and MERS used that power to assign the Mortgage to 

Wells Fargo.” (footnote omitted)). As such, an assignment is still valid regardless of whether the 

mortgagee or original lender exists at the time of assignment. See Handfield v. Wells Fargo 

Bank, N. Am., No. 1:12-CV-01080-RWS, 2013 WL 1501942, at *6 (N.D. Ga. Jan. 23, 2013)

(“This Court is unaware of any legal authority that would invalidate the assignment from MERS 

to Wells Fargo, simply because Utah Financial, the original lender, was defunct.”); see also Kiah 

v. Aurora Loan Servs., LLC, No. CIV.A. 10-40161-FDS, 2011 WL 841282, at *4 (D. Mass. Mar. 

4, 2011). 

4. Additional Allonges to the Promissory Note

Next, Plaintiff pivots, focusing not on the propriety of the Assignment, but on the Note 

itself.1

 Plaintiff points out that the original Note attached to the foreclosure complaint differs 

from the version attached at summary judgment in the state-court action in a crucial way. The 

 1 Though the Note is not relevant to Plaintiff’s RICO claim as pled, the Note is now at issue because BANA argued 

in its summary judgment motion (Doc. 76) that even if the Assignment were somehow fraudulent, the foreclosure 

was proper because BANA was the actual holder of the Note at the time of the foreclosure. Id. (citing Nationstar 

Mortgage LLC v. Cruse, No. 2:14-CV-383, 2015 WL 5174640, at *4 (S.D. Ohio Sept. 4, 2015) (“Because 

Nationstar has the note in its possession and it is indorsed to bearer, it is the holder of the note and is a person 

entitled to enforce the note.”)). To counter BANA’s defense, Plaintiff contests the validity of the Note.

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original Note, he argues, was made out to Countrywide Bank and it contained no endorsements 

or allonges. The version of the Note attached at summary judgment, however, included an 

allonge transferring an interest in the Note from BANA, on behalf of Countrywide Bank, to 

BAC. (See Doc. 82-15 at 153–54). And during discovery in this case, an additional allonge 

surfaced, which was signed by a different BANA representative and again transferred interest in 

the Note to BAC. Under Plaintiff’s theory, the different versions of the Note, which emerged at 

different times in different cases, demonstrate Defendants’ fraud. 

Filing two different versions of the Note at issue (in two different cases)—one with

endorsements and allonges and one without—says nothing about the authenticity of the Note. 

See Bridge v. Ocwen Fed. Bank FSB, No. 1:07 CV 2739, 2013 WL 4784292, at *7 (N.D. Ohio 

Sept. 6, 2013) (“The mere fact that there were two different copies of the note in the record—one 

with endorsements and one without—does not mandate a finding that one of the notes was 

‘unauthentic’ . . . .”). It also does not indicate that BAC did not actually hold the note at the time 

of foreclosure. Nor does it rise to the level of prima facie showing necessary for the crime-fraud 

exception. See id. at *7 (“Plaintiffs advance multiple theories about why there are two copies, 

suggesting conspiracies and nefarious acts. However, there are no facts that lend support to those 

theories.”).

Further, Defendants offer evidence to rebut Plaintiff’s theory. According to an affidavit 

from Susan Magaddino, a BANA employee with knowledge of the records at issue, “it is not 

unusual for there to be multiple copies of the same promissory note in BANA’s records.” (Doc. 

78-1 ¶ 9); (see id. (“It appears the copy of the Note filed in the Foreclosure Action is from the 

closing file. This is the copy of the loan documents as they exist after being executed at the loan 

closing. The copy of the Note from the closing file would not contain any endorsements because 

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it is a copy of the Note on the day it was signed.”)). For these reasons, the crime-fraud exception 

does not apply.

5. In Camera Review

In the alternative, Plaintiff argues for an in camera review of the allegedly privileged 

material. Even an in camera review requires a minimum showing of evidence indicating the 

possibility that the crime-fraud exception might apply. See In re Grand Jury Subpoenas, 454 

F.3d at 520 (“Thus, even inspections by the district judge, which do not destroy privilege, require 

a prior showing that is weakly analogous to probable cause.”). Plaintiff has had many months to 

conduct discovery in this case, meaning he has had the opportunity to compile evidence to 

support the crime-fraud theory. Despite this, he has not presented any evidence indicating the 

probability, or even possibility, of a qualifying crime, or that the communications at issue were 

made with an intent to further a crime or fraud. See, e.g., In re Antitrust Grand Jury, 805 F.2d at 

168 (“[M]erely because some communications may be related to a crime is not enough to subject 

that communication to disclosure; the communication must have been made with an intent to 

further the crime.”). 

Further, opponents of the attorney-client privilege need to give reviewing courts some 

basis in the record to conduct an in camera review, both to justify the burden of the review and to 

prevent the Court from going on a fishing expedition on behalf of the opponent. See, e.g., Zolin, 

491 U.S. at 571 (“There is no reason to permit opponents of the privilege to engage in groundless 

fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents.”); 

id. at 572 (“Before engaging in in camera review to determine the applicability of the crimefraud exception, ‘the judge should require a showing of a factual basis adequate to support a 

good faith belief by a reasonable person,’ that in camera review of the materials may reveal 

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evidence to establish the claim that the crime-fraud exception applies.” (citation omitted)). 

Plaintiff has offered the Court no guidance on conducting an in camera review, and the Court 

declines to engage in an exploratory mission without parameters.

B. Waiver of Attorney-Client Privilege and the Work-Product Doctrine

 Plaintiff next argues that LSR and BANA waived the attorney-client privilege and workproduct doctrine when they disclosed sensitive, client-related information to Ms. Hill in her 

capacity as a signer for MERS. Importantly, Plaintiff does not argue privilege does not apply 

generally to the communications at issue. Instead, he contends that by disclosing privileged 

information to Ms. Hill in her capacity as a MERS employee, BANA waived privilege.

In support of privilege, Defendants provided privilege logs detailing the withheld 

documents. (See Docs. 82-3, 82-14, 89-1). Planitiff argues, at a high level of generality, that the 

privilege logs indicate that BANA communicated with LSR regarding the foreclosure. (Doc. 82 

at 7). This, however, does not indicate privileged communication between BANA and Ms. Hill, 

and the logs are insufficient to demonstrate waiver. See Liang, 2015 WL 8958884, at *6 

(“[S]imply identifying the general subject matter of the communication [in a privilege log] will 

not serve to waive the attorney-client privilege.”). In short, nothing in the logs indicates that the 

privilege has been waived.

Plaintiff also relies on Ms. Hill’s deposition from an unrelated case in the Franklin 

County Court of Common Pleas. (See Doc. 82-15 at 235–54). Ms. Hill testified, in part, that she

executed assignments in her capacity as a MERS vice president and assistant secretary. (See 

Doc. 26-2 at 10–11). Plaintiff argues that because Ms. Hill signed the documents on behalf of 

MERS, not the law firm that employed her, Ms. Hill was technically a third party at the time of 

signing. Based on this, Plaintiff argues, BANA waived the attorney-client privilege when LSR

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disclosed Plaintiff’s file to Ms. Hill for the purpose of the Assignment. But reliance on a 

deposition that is both equivocal on the privilege issue and from a different case in 2010 is not 

evidence of waiver in this case. (See Doc. 26-2 at 14 (Ms. Hill testifying that she “only” 

reviewed “[t]he assignor and assignee name,” “typographical errors,” whether her “name is 

spelled right and that the signature line is listed correctly”); but see id. at 13 (Ms. Hill testifying 

that she reviewed the “mortgage, a title, . . . and any other communication,” like “Emails,” 

regarding the mortgage she assigns)). Ultimately, the Court has no evidentiary basis to conclude 

that the privilege was waived as to any Note- or Mortgage-related communications in this case.

Beyond this, Defendants argue that the attorney-client privilege is the client’s to waive, 

not the attorney’s. See Mason v. Mitchell, 293 F. Supp. 2d 819, 823 (N.D. Ohio 2003). A client 

can affirmatively waive the privilege by “voluntary disclosure of private communications,” or 

passively, “by conduct which implies a waiver of the privilege or a consent to the disclosure.” In 

re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002). 

Defendants argue that there is no evidence indicating that the client at issue in this case, BANA, 

waived the privilege, or that BANA’s conduct ratified the waiver of the privilege. 

The Court agrees. To the extent any evidence on this issue exists, it affirms Defendants’ 

position. For example, in her unrelated deposition from the Franklin County case, Ms. Hill 

testified that, in the ordinary course, LSR “receives a . . . foreclosure referral” from LSR’s 

“client” (Doc. 26-2 at 11); and that LSR employees review the relevant documents and prepare

the assignments (see Doc. 82-15 at 246). In other words, the evidence indicates that BANA 

sends its attorneys a foreclosure referral with the idea that its attorneys would take the necessary 

steps to facilitate a foreclosure. Only then do BANA’s attorneys make the choice to involve 

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MERS in executing the assignment. There is no further evidence of BANA acting in a way that 

ratified the disclosure, meaning that its attorneys alone cannot have waived the privilege.

2

In reaching this conclusion, the Court notes that the relationship between Defendants as it 

pertains to the Assignment and the invocation of privilege gives it pause. In a different case 

involving LSR under similar circumstances, Judge Reece of the Franklin County Court noted:

This Court admits that it is somewhat concerned about a practice which 

threatens to shield elements of otherwise discoverable transactions from 

discovery by having those transactions take place within a lawfirm carried out 

by a lawfirm employee who has obligations of loyalty to both parties in the 

transaction.

(Doc. 82-22 at 3). Though the Court likewise finds the practice somewhat concerning, it has no 

basis beyond Plaintiff’s conjecture to believe that the privilege was abused or waived in this 

particular case. 

C. The Supplemental Motion to Compel

Plaintiff asks the Court to apply its ruling on the attorney-client and work-product issues 

to the depositions of BANA’s, LSR’s, and MERS’s respective corporate representatives, and to 

the objections to the written discovery that Plaintiff anticipates MERS will make. (Doc. 93). 

Accordingly, the Supplemental Motion, as to BANA and LSR, is DENIED.

As to MERS, the Supplemental Motion is DENIED as premature. MERS’s discovery 

responses to Plaintiff’s requests are not due until March 31, 2016, which is today. Accordingly, 

 2 Defendants make a number of additional arguments in favor of preserving the attorney-client privilege. For 

example, they argue that Ms. Hill executed the Assignment in her role both as an employee of MERS and of LSR, 

meaning that the privilege remained intact because she was also acting as an agent of the law firm. The record is 

somewhat unclear on this point. (See Doc. 82-15 at 243; but see Doc. 82-13 at 19). Defendants also argue that all 

parties had the same legal interest in the transaction, meaning their communications remained privileged by virtue of 

the common-interest doctrine. See Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D. Ohio 2010) (“The commoninterest doctrine also operates to protect information disclosed to other parties, expanding coverage of the attorneyclient privilege to include situations in which two or more clients with a common interest in a matter agree to 

exchange information regarding the matter.”). The record is not developed enough for the Court to rule on the 

common-interest argument at this time. Regardless, because the Court finds the privilege remains intact, it need not 

resolve these issues.

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the Supplemental Motion as to MERS is not ripe for review. See NetJets Large Aircraft, Inc. v. 

United States, No. 2:11-CV-1023, 2014 WL 1672588, at *11 (S.D. Ohio Apr. 28, 2014) 

(“[C]ourts often wait to decide issues of privilege until they have specific questions or facts 

before them.”). In addition, MERS argues that Plaintiff should pay its reasonable fees and 

expenses pursuant to Fed. R. Civ. P. 37(a)(5)(B) for failing to meet Rule 37(a)(1)’s requirement 

for a good faith effort to settle discovery issues before involving the Court. See also S.D. Ohio 

Civ. R. 37.1. The Court finds that such an award would be unjust and DENIES MERS’s 

request. The Supplemental Motion was premature, but Plaintiff made clear that it was filed “in 

light of Defendants’ firm objections regarding allegedly privileged information and documents, 

the pending Motion to Compel, and the fast-approaching discovery deadline.” (Doc. 93 at 2). 

The Court understands that Plaintiff’s counsel was attempting to act in a manner that was most 

efficient for all parties. The Court does, however, advise counsel to comply with Rule 37(a)(1) 

and S.D. Ohio Civ. R. 37.1 in the ordinary course.

IV. CONCLUSION

For the reasons stated, the Motion to Compel (Doc. 82) and Supplemental Motion to 

Compel (Doc. 93) are DENIED.

V. MOTION TO RECONSIDER

Any party may, within fourteen days after this Order is filed, file and serve on the 

opposing party a motion for reconsideration by a District Judge. See 28 U.S.C. § 636(b)(1)(A); 

Fed. R. Civ. P. 72(a); Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The motion must 

specifically designate the Order or part in question and the basis for any objection. Responses to 

objections are due fourteen days after objections are filed and replies by the objecting party are 

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due seven days after. The District Judge, upon consideration of the motion, shall set aside any 

part of this Order found to be clearly erroneous or contrary to law.

This Order is in full force and effect even if a motion for reconsideration has been filed 

unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio Civ. R. 72.3.

IT IS SO ORDERED.

Date: March 31, 2016 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

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